A Parent's Guide to Juvenile Transfer in Virginia

A Parent’s Guide to Juvenile Transfer in Virginia

JustChildren, Legal Aid Justice Center 1000 Preston Avenue Charlottesville, Virginia 22903 434.977.0553 www.justice4all.org

Campaign for Youth Justice 1012 14th St. NW, Suite 6 Washington, D.C. 20005 202.558.3580 www.campaignforyouthjustice.org

Written & edited by Amy Woolard, Principle Author Abigail Turner Phillip T. Storey Andrew K. Block Alison M. Crane Jessica Sandoval

December 2007 Introduction

n Virginia, if your child is at least 14 years old and is charged with certain serious felonies, he or she may be prosecuted in the adult Icriminal court system, a process called juvenile transfer. Upon transfer to adult court, your child will be treated as an adult in the court. Transfer brings a different set of rights, restrictions and procedures than in the juvenile system.

If you think this sounds serious, you’re right—the adult court Special thanks and appreciation to the fol- and adult prison systems are no place for children. Youths who are lowing for their support of this endeavor: tried and sentenced in the adult system live their daily lives among adult criminals, and are more likely to become repeat offenders than children placed in the juvenile system. While not perfect, the juvenile justice system strives to provide kids with treatment and rehabilitation. Parents of children involved in the courts who The juvenile system offers educational and mental health services suit- advised us on the content and format of the ed to a child’s age and experience—these are often scarce in the adult prison system. transfer guide. With this handbook, we aim to guide you through what is often Butler Family Fund a stressful and complicated process. Along the way, we hope to answer your questions, offer resources, and provide you with information and Public Welfare Fund materials so that you can better prepare and support your child and your child’s attorney during this difficult time.

The chapters trace a child’s path through the justice system, of- fering information and assistance at each stage of the process. We’ve also provided tools such as blank pages for notes, detachable cards, and folder pockets, so that you may use this manual as more than just a ref- erence. All of the terms appearing in bold type are defined in our Glos- sary section. Your presence, support, and involvement will be invaluable to your child’s future, no matter the outcome of his or her current situation.

i. Table of Contents Table of Contents

Cast of Characters...... 1 Resources...... 53 In the Beginning...... 4 National and Regional Organizations...... 53 The Intake Process...... 5 How to take Action...... 60 The Detention Hearing...... 7 What you can do to help...... 9 Notes...... 11 Parting Thoughts...... 64

The Preliminary Stages...... 15 Glossary...... 65 The Preliminary Hearing...... 16 What is Juvenile Transfer?...... 17 A Brief History of Transfer...... 18 Appendix...... 77 Breaking Down the Law into its Parts...... 19 “Once an Adult, Always an Adult”...... 24 Ancillary Charges...... 25 Notes...... 85 Appealing the Transfer Decision...... 26 What you can do to help...... 27 Notes...... 29

The Final Stages...... 33

The Criminal Trial...... 34 What you can do to help...... 35 The Sentencing Hearing...... 37 Incarceration Issues...... 41 Protecting Your Child’s Rights...... 45 Coming Home...... 46 Notes...... 49

ii. iii. Cast of Characters Probation Officer: Your child may be assigned a probation officer by the Court Service Unit. This person may Commonwealth’s attorney: In Vir- write a report to the juvenile court ginia, the prosecuting attorney is called about your child, including a recom- a “Commonwealth’s attorney,” because mendation about whether the child Virginia is a Commonwealth, rather than can benefit from the juvenile correc- Victim-Witness Advocate: If your state. If your child is prosecuted in adult Investigating Officer(s): During the tions system. The probation officer child is charged with a crime against (circuit) court, a Commonwealth’s attor- initial investigation of the suspected may also be called upon to make another person, you may see a vic- ney will handle the case against him or offense, your child will be questioned recommendations to the court on tim-witness advocate in the court- her. The Commonwealth’s attorney often by police officers. Remember that your whether or not your child should be room along with the person who holds a great deal of power in determin- child has the right to remain silent dur- released pending trial or sentencing, is alleging the charges against your ing whether or not your child will be ing this time, and also has the right at various stages of his or her case. If child. The advocate’s job is to counsel prosecuted as an adult. to an attorney. The court will appoint your child is convicted, the proba- and support this person throughout a public defender or court-appointed tion officer is responsible for helping the process; they will work with the lawyer for your child if you qualify as your child to take advantage of any Commonwealth’s attorney and law low-income. It’s best to consult with an required or recommended services, enforcement officers to help this per- attorney before encouraging your child like drug counseling, community son. The advocate will also help the to answer potentially incriminating service or job training. this person to write a “victim impact questions. statement,” which may work against Intake Officer: The intake officer Public Defender/Court-Ap- your child during detention, transfer, serves in the Court Service Unit. He or pointed Attorney: If your child is and sentencing hearings. she decides whether to divert the initial arrested, or if charges are filed, the complaint in order to provide informal court may appoint a public defender sanctions on a juvenile, to dismiss the Judge: During your child’s experience or other attorney to represent him complaint for lack of merit, or to file a with the justice system, your child may or her if you cannot afford a private petition against the juvenile. In addition appear before several judges, depending lawyer. As a parent, you should en- to intake, the Court Service Unit oversees on the charges filed. Most commonly, a courage your child to be as honest as probation and parole officers; community, juvenile will first appear before a judge possible with the lawyer appointed to substance abuse and mental health ser- in the Juvenile and Domestic Relations his or her case. Any information your vices for indigent or court-ordered clients; court. If your child is transferred to the child gives will be confidential and and pre-trial services, among other pro- adult system, he or she will appear before will be a secret between the lawyer grams. a circuit court judge, who will most likely and your child. Your child’s lawyer preside over the case after that. may not tell this information even to you as the parent. 1. 2. The process Suspicion of In the Beginning begins: offense How does my child first come into contact with the court system?

Arrest/ A child enters the justice system when a complaint is filed against Complaint him or her by a parent, citizen, or agency (a school, for example), or through contact with the police.

◊ If this first contact is with the police, an officer can choose either Intake to counsel and then release the child, or to arrest the child. The seriousness of the crime and the child’s prior charges are important factors in the officer’s decision.

◊ If a parent, agency or other citizen files the complaint, then the Informal Action/ File Petition No Action issue will go to intake. Diversion What is Intake?

Theintake officer decides whether there is enough evidence to sug- Release to Parent Detain gest that a child has violated the law. The officer can decide whether to take or Guardian no action and release the child; to proceed with an informal action, such as counseling, community service or shelter care (also called diversion); or to file apetition . A petition is a formal report of what the child has or has not done that has brought the child into the court process. Detention ◊ If the original police officer or complainant disagrees with the Hearing intake officer, in some cases, he or she may appeal the decision to the magistrate. In this case, the magistrate must certify (approve of) the charge before it returns to the intake officer for filing. Release Continue

until hearing to detain

3. 4. The Intake Process: The Intake Process: The Petition Notifying the School

After a petition has been filed against my child, what happens next? Does my child’s school have to be notified of the charges?

Once a petition has been filed, the intake officer decides whether to release the child Virginia law says that if a petition is filed against a child based on the following crimes, to his or her parents or another responsible adult, or to detain the child. An important the intake officer must notify the superintendent of the school district. factor in this decision is whether the child is a risk to himself or herself, a risk to the community, or an escape risk.

◊ If the intake officer decides to detain the child, then a detention hearing must ◊ An offense involving a firearm be held in the Juvenile and Domestic Relations court within 72 hours. The ◊ Homicide judge will determine if there is a need for further detention, and will examine ◊ Felonious assault how valid the charges might be. ◊ Bodily wounding ◊ Criminal sexual assault ◊ The decision to place a child in secure detention before a court hearing is ◊ Certain offenses related to the manufacture, sale, distribution or possession of based primarily upon a worksheet called a Detention Assessment Instru- illegal drugs ment. This tool gives a child an overall “score” based on a point system that ◊ Arson and related crimes looks at questions such as: Has the child has been in legal trouble before? ◊ Burglary and related crimes Does the child have certain mental health needs? Does the child have a job? ◊ Robbery Does the child attend school regularly? Depending on the “score,” the child ◊ Certain criminal gang-related offenses, including recruitment may be kept in detention.

◊ Remember that if your child is charged with a serious felony that could make him or her eligible for transfer to adult court, there is a good possibility that If your child has been charged with any of these, the local school board can expel your your child will be held in detention pending the next hearing. Try to prepare child from school. If your child is released from court custody, ask how you can chal- yourself for all possibilities. lenge this decision to expel.

5. 6. The Detention Hearing The Detention Facility

My child has been placed in a juvenile detention facility until the next My child has been scheduled for a detention hearing. What happens next? hearing. What questions should I ask?

Within 72 hours of your child’s initial detention, the Juvenile and Domestic Relations Ask for a set of rules for parents. Be sure they include the following: court must hold a detention hearing, to decide where your child should be placed until the next hearing. This detention hearing will allow a judge to examine the charges ◊ What are the visiting hours? Do I need photo identification? against your child, and decide whether he or she should be held in a juvenile facility, placed in an alternative facility such as a halfway house, or sent home or placed in the ◊ May I bring my child personal items (e.g. soap, shampoo, shaving equipment, care of other responsible adults. Remember that your child has the right to an attor- stamps, books)? What items will be available, if any? Are there any items I ney during this hearing. You can hire an attorney for this hearing. If your family cannot bring? is low income, ask the court to name a public defender or appoint an attorney for your child. Find out the attorney’s name and phone number, and make contact with ◊ How many phone calls and letters is my child allowed each week? Are there him or her right away. any other restrictions on phone use?

◊ It’s important to remind your child’s lawyer that even if your child may be ◊ What educational services are available? Will my child receive appropriate subject to transfer to adult criminal court, a judge has the power to place classroom instruction, and for how long each day will he or she attend school? your child in a juvenile facility unless and until your child is convicted of an adult charge and specifically sentenced to time in an adult jail or prison. ◊ What mental health, counseling, or medical services are available?

◊ If your child is placed in a detention facility, ask what that facility can provide ◊ What activities will my child be able to access (e.g., religious services, Girl or your child in terms of education, mental health services, activities and person- Boy Scout meetings, 12-step meetings)? al items. It’s very important to maintain regular contact with your child, and remind him or her to behave and to take advantage of any services the facility ◊ How many children are housed in this facility? Who is living in the same provides. Encourage your child to be a “model citizen” in detention, so that room as my child? a judge and the prosecutor have every reason to believe your child does not belong in an adult facility. ◊ Who is supervising my child? How many adults staff the facility?

◊ Many juvenile facilities have Web sites with schedules, policies and services. If ◊ What sort of recreation is available to my child? you do not have access to a computer, ask the facility staff these questions.

7. 8. What you can do What you can do for your child: for your child’s lawyer:

◊ It’s extremely important to remind your child to behave well during this time. A child is often his or her own best character witness. If he or she ◊ If your child’s lawyer is a public defender, it’s likely that his or her case is released, make sure the child attends school regularly and on time, load is tremendous. Any investigative work that you can do for this at- completes all classwork and homework, and avoids any trouble. Give the torney is crucial. Try to locate potential witnesses to the incident; take judge every opportunity to understand that your child belongs at home. down their phone numbers and addresses, and pass this information along to your child’s lawyer. ◊ Encourage your child to be honest with his or her lawyer. The information will be confidential between the two of them, and it’s vital that your ◊ Offer to gather your child’s school records and any other positive infor- child’s attorney knows all the facts and circumstances of the case to pres- mation. Community service work and other personal achievements can ent an effective defense. demonstrate your child’s positive character. Medical records or special education IEP reports could shed light on possible competency issues or ◊ Just be there. Even if your relationship with your child is not at its best, special needs your child might have if detained. it’s important to show your support. It’s also important to show the court that you support your child. A judge will be more likely to release a child ◊ Ask questions. If your child is detained, a lawyer may not be able to visit into the custody of a concerned parent than one who is absent from the with him or her as often as necessary. If you keep the lines of communi- courtroom. cation open, you’ll be able to convey and reinforce any important information the attorney needs your child to know and understand. ◊ Try to research possible programs or services from which your child might benefit—tutoring sessions, 12-step meetings, or other volunteer ◊ Inform friends and family of court dates. The more visible your child’s work might demonstrate to the court that your child is invested in his or support network is, the bigger the impression upon the court. Ask for- her own future and the community. If these organizations are prepared mer employers or teachers of your child to write letters of support, and to offer their support to your child, ask them to write a letter to the ask if they will testify, if necessary. court, or ask if someone might be willing to appear in court to inform the court that your child has a support system standing by.

9. 10. Notes Notes

Your Child’s Attorney: ______

Courthouse: ______

Judge: ______

Prosecutor: ______

Charge(s): ______

Court Dates: ______

______

For questions, please call JustChildren at 1-800-578-8111 (toll free).

11. 12. Notes Notes

13. 14. The process The Preliminary Hearing continues: Detention Hearing

In the Preliminary Hearing, the judge decides two issues: (1) is there probable cause to believe that your child committed the crimes with which he or she has been charged, Release until Continue to and (2) is the child competent, or able to understand the court proceedings and help Hearing Detain the child’s attorney?

Probable Cause: Preliminary Hearing ◊ Probable cause means that the court has a reasonable belief of two things: that the crime charged was committed, and that the person charged is the one who committed that crime.

Dismissal: Juvenile Transfer Hearing ◊ In the preliminary hearing, the prosecution’s burden of proof, or what the No Probable Adjudication or prosecutor must show the judge to receive a favorable decision, is much lower Cause (Juvenile Trial) Direct Indictment than in the actual criminal trial. The Commonwealth’s attorney may reveal a portion of his or her strategy at this point, but will most likely present only enough evidence so that the court finds a “reasonable belief” that the child has been properly charged. Transfer/ Transfer/Waiver/ Certification Certification Competency: Denied as Adult ◊ The court assumes that your child is competent to stand trial, unless the defense proves otherwise. If you think your child has a mental or emotional disability, or your child is slow to understand, then tell your child’s attorney. Gather and give the attorney all related information, such as medical reports, Back to Juvenile Criminal Trial a list of prescriptions, IEP records, and your child’s behavioral history. Court in Circuit Court ◊ If the attorney persuades the court that there is a questions about your child’s competency, a court will order Juvenile Competency Services to perform an evaluation. The court may also order services such as counseling to help your child become competent to stand trial. 15. 16. What is Juvenile Transfer? A Brief History of Transfer

My child is eligible for transfer to adult criminal court. Why does Virginia seem to make it so easy for kids to be tried as adults? What does this mean? In the early 1900’s, the juvenile justice system was created as an alternative to the In Virginia, when a juvenile 14 years of age or older is charged with certain felonies, adult criminal system in order to provide rehabilitation for children. Many believed the child may be transferred to and tried in the adult criminal court. For a transfer, the that juveniles could not be reformed while serving their sentences among adult offend- court uses the age of the child at the time of the offense. The child must be charged ers. Not until the 1960’s, though, were juveniles given some of the basic legal rights with an offense that would be considered a felony if done by an adult. If your child that we take for granted today. Several U.S. Supreme Court cases guaranteed court-in- is convicted after transfer, a judge may sentence the child to full or partial time in an volved kids protections such as: notice of charges, privilege against self-incrimination, adult prison; however, unless a charge carries mandatory adult time, a judge may speedy trial, the right to a lawyer, and the ability to confront and cross-examine wit- also use juvenile time alone. nesses.

There are three ways a juvenile may be sent to adult (circuit) court for trial:Judicial Unfortunately, government support for addressing juvenile crime through pre- Discretion, Mandatory Transfer, and Prosecutorial Waiver (which includes Direct ventative measures largely ended in the late 1980’s. Public perception of a widespread File). These three procedures are written into law in Virginia Code §16.1-269.1. increase in violent crime fueled laws that shifted official policy toward punishment in the juvenile justice system. By the mid-1990’s, 47 states had passed laws that refash- ◊ Judicial Discretion: With some felony charges, the prosecutor asks the ju- ioned their juvenile justice procedures into punishment systems. venile court to hold a transfer hearing. The Commonwealth’s attorney will present evidence asking to transfer the case to circuit court. The defense puts Political campaigns and television media reports exaggerated crime in the late on evidence why the case should stay in juvenile court. The judge will then 1980’s and 1990’s. Some lawmakers capitalized on fear and pushed for a “reform” of decide whether to transfer the case to adult court or keep it within the juve- the juvenile justice system, emphasizing longer and harsher sentencing for juvenile vio- nile system. lent crime. Little attention was given to poverty, mental illness, accessibility of guns, or educational failures. ◊ Mandatory Transfer: If a child is charged with certain serious crimes, like murder and aggravated malicious wounding, the court has no discretion to Almost every state, believing that youth were the problem, enacted legislation keep the child in the juvenile system. The General Assembly has said that the that made it much easier for juveniles to be tried as adults. These misperceptions place charges must be certified to adult criminal court (circuit court). Virginia among the states that send kids as young as 14 years old into prisons and offer them an education in criminal behavior. These views also permit prosecutors to decide ◊ Prosecutorial Waiver: In other serious cases, the Commonwealth’s attorney which children will get transferred from a broader list of crimes. holds the power either to keep the case in the juvenile system, or to waive the case into the adult system. Turn to our Resources and Take Action sections for ideas and information on how you can help advocate for children who are subject to these transfer laws.

17. 18. Judicial Discretion: What it means The Transfer Hearing What will happen during a transfer hearing? Va. Code §16.1-269.1(a) The transfer hearing is a golden opportunity to show the court why your child does not belong in an adult court or an adult prison. To tranfer a child to the For some felonies, the judge must look more carefully at the child’s background circuit court, the juvenile court must find that the child does not belong in the if the prosecutor asks the court to transfer the child. juvenile system. The Commonwealth’s attorney and the juvenile court must follow certain rules in holding such a hearing: To do that, the court conducts a transfer hearing, and considers a variety of facts about whether the child is “a proper fit” for the juvenile system. The judge ◊ You (as the parent) or your child’s attorney must be given written notice that a must consider, but isn’t limited to, the following factors: transfer hearing will be held.

◊ The child’s age, school record, and his or her mental, emotional, and physical ◊ The court must find that your child’s act would have been a felony if committed maturity. by an adult.

◊ The seriousness of the offense. ◊ The transfer hearing must be held within 21 days of your child’s detention. If your child is released after a detention hearing or arrest, then the transfer hearing ◊ Whether the child can be rehabilitated in the juvenile system. must be held within 120 days from the date the petition was filed against your child. ◊ What services either the juvenile or the adult system is able to provide. ◊ The Court Service Unit must prepare a written report about your child’s his- ◊ Any previous contact the child has had with the juvenile justice system, and tory, including any gang involvement. The Unit also can offer helpful information any impact those events might have on the current situation. about what services the child needs and whether they recommend commitment to the Department of Juvenile Justice. ◊ Whether the child has ever escaped from a correctional facility. During the hearing, the Commonwealth’s attorney will present information to the court about your child, including the seriousness of the offense, progress in ◊ Any mental illness or mental retardation the child might have. school, mental health issues, and prior delinquency issues. The defense should present positive information about your child, such as good things she or he has done. In addition, any statements a child makes during his or her transfer hearing:

◊ May not be used later in the trial in order to prove the charges against the child, but ◊ May be used against a child later in order to show that the child is not telling *Please see the Appendix of this guide for the full text of this law. the truth. 19. 20. Mandatory Transfer: Prosecutorial Waiver: What it means What it means Va. Code §16.1-269.1(c) Va. Code §16.1-269.1(b) If a juvenile is charged with any of the following crimes, a prosecutor may give written notice of his or her intent to try the youth as an adult:

◊ Murder (other than first-degree murder) If a juvenile age 14 years or older is charged with any of the following offenses: ◊ Felonious injury by mob ◊ Abduction ◊ First-degree Murder (§18.2-32) ◊ Malicious wounding, including malicious wounding of a police officer ◊ Robbery ◊ Lynching (§18.2-40) ◊ Carjacking ◊ Rape ◊ Aggravated Malicious Wounding (§18.2-51.2) ◊ Forcible Sodomy ◊ Object sexual penetration ◊ Felonious poisoning The juvenile court will automatically conduct a preliminary hearing to deter- ◊ Adulteration of products (product tampering with the intent to kill or injure) mine if there is probable cause that the child committed the crime(s). Only the prosecution will be allowed to put on evidence; the child’s attorney will not be The prosecutor must file notice with both the court and the child’s attorney permitted to raise defenses about mitigating circumstances, favorable evidence, (or, if the child does not yet have an attorney, with his or her parents or guard- or character witnesses. ian). This notice must be filed and delivered at least seven days prior to the preliminary hearing. If the court finds probable cause, the charges will be certified to thegrand jury, In these cases, a prosecutor does not have to consider any of the factors that which may issue an indictment, resulting in trial in the adult criminal court. a judge must examine in a full transfer hearing. The prosecutor, not the court, The certification process releases the child from the jurisdiction of the juvenile decides whether the youth is a proper fit for the juvenile or adult court. The court. court still must make a finding of probable cause that the youth committed the crimes with which he or she is being charged. Often the police are the only witnesses. The defense will not be able to present any evidence of the child’s good behavior at the probable cause hearing. The child’s attorney may cross-examine witnesses about the charges. The child’s attorney can also raise the child’s competency if there is reason to believe the child cannot understand the proceedings and assist the attorney. *Please see the Appendix of this guide for the full text of this law. *Please see the Appendix of this guide for the full text of this law. 21. 22. Direct Filing: What it means The “Once an adult, always an adult” law: What it means Va. Code §16.1-269.1(d) Va. Code §16.1-271 If your child’s case seems headed to adult criminal court, but the court does not find probable cause that your child committed the crimes, or has dismissed the If your child is certified or transferred to adult court and then tried and con- charges, a prosecutor may still be able to transfer the case to adult court through a victed in adult court, the child will be treated as an adult in the courts in the process called Direct Filing. future, even if the child is still under the age of 18.

If the prosecutor wants to try your child as an adult, the prosecutor may not be dis- This means: couraged by the lack of probable cause. At that point, a prosecutor can ask a grand jury to indict your child directly. ◊ If other charges are filed against your child, or even if charges are pending at the time the child is convicted, it no longer matters how serious these charges In Virginia, a grand jury: are. Your child will now be treated as an adult in any future court matters.

◊ Can hear evidence that a juvenile court might not, such as hearsay testimony ◊ If your child receives a sentence for any subsequent charges (even misdemean- from witnesses or police officers. The grand jury can also ask questions in- or ors), a judge can sentence your child using the adult sentencing guidelines. der to make their decision. Neither side’s attorney is present at the hearing. ◊ A judge may be able to place your child in a juvenile facility for all or a por- ◊ Does not record its hearing. The hearing is designed to be “secret.” tion of his or her sentence; however, if your child is convicted of a charge that carries a mandatory minimum adult sentence, your child must serve that sen- ◊ Isn’t trying to determine guilt or innocence, so the witnesses are not likely to tence in an adult facility after the juvenile time. include people who would testify favorably about your child. Remember, though, that even if your child is eligible for transfer, or in the process of being transferred to adult court, a judge can still choose to hold your child in a juvenile facility pending trial.

*Please see the Appendix of this guide for the full text of this law. *Please see the Appendix of this guide for the full text of this law. 23. 24. Ancillary Charges Appealing the Transfer Decision

What happens when my child has been charged with more than one My child has been certified as an adult—is there anything we can do to crime? keep him or her in juvenile court?

Your child may be charged with more than one crime. For example, if your child is If your child’s case has been transferred to the adult criminal court through charged with robbery, he or she might also be charged with “use of a firearm in the judicial discretion after a transfer hearing, talk to your child’s attorney about commission of a robbery.” appealing the transfer.

The most serious charge will be the one used to decide which transfer process The child may be able to appeal the juvenile court’s transfer decision in circuit (Judicial Discretion, Mandatory Transfer, or Prosecutorial Waiver) the court will court, but one must file that appeal within 10 days of the juvenile court’s deci- use; however, once a certain charge has qualified your child for transfer to adult sion to transfer. For success on appeal, your child’s attorney must show that the court, other related, but less serious charges—called ancillary charges— will also juvenile court did not “substantially comply” with the legal requirements for be transferred. This is true even though these less serious charges alone would not discretionary transfer. make your child eligible for transfer. If this appeal is successful, the circuit court judge can return the case to the juvenile court. Since the juvenile judge’s finding of probable cause will still stand, ◊ This can mean that your child could still be sentenced as an adult for a the case will move to a hearing in the juvenile court. lesser crime, and the judge could use the adult sentencing guidelines. *Please note, though, that the prosecutor can appeal in a judicial discretion ◊ Unless a charge carries mandatory time, a judge can take into account your case if the court does not grant the transfer. child’s age and situation, This is another reason why it is so important to show the court that your child is not a good fit for the adult prison system.

25. 26. What you can do What you can do for your child: for your child’s lawyer:

If your child is given a full transfer hearing, the Commonwealth’s at- ◊ If your child must appear in court, try to make sure the child has appro- torney will try to show the judge that your child is not a good candidate for priate clothing for the courtroom. The child should wear clothes similar the juvenile system. The prosecutor will emphasize the serious charges and to church clothing: a button-down shirt and pants for boys, and blouse any negative behavior the child might have shown over the years. and skirt or nice pants for girls (If your child is being held at the detention center, you will have to try to deliver the clothes to them at the The good news is that the judge also has to consider all the positive facility). Be prepared, though, for your child to come into the courtroom qualities about your child. That is why it’s so important that your child in a jumpsuit, or even shackles: your child’s court clothes may be decided take advantage of any educational, recreational, therapeutic, or skills-build- by the detention center employees. ing services that either the community or detention center (depending on where your child is) might offer. The goal is to show the court that your ◊ Try to select clothing that covers any visible tattoos, and remind your child is, in fact, a child who has needs that are specific to children. child to be conservative when selecting jewelry, hair styles and hair acces- sories. ◊ If your child is in a special education program, make sure you provide his or her attorney with a copy of the latest IEP. If possible, ask your ◊ Even though your child may feel angry or frustrated toward the judge, child’s teachers to either write a letter or appear in court, if the teachers prosecutor, police officers, or others, your child should behave well while are willing to tell the judge that your child does not belong in the adult in and around the courtroom. The court environment is very strict, so system. remind your child to sit up straight, maintain good eye contact with the ◊ Write down for your child’s attorney all the activities your child has been judge, speak clearly and loudly enough for the judge to hear (say “Yes, involved in (sports teams, church groups, and even hobbies like drawing ma’am” or “Yes, sir” when speaking to the judge), and try to remain calm or writing will help). Briefly describe the activity, and what it means to and quiet in court. your child. ◊ Be honest with your child’s attorney about any negative information that ◊ Remind your child to listen carefully to questions, to tell the truth, and might surface in the transfer hearing. If your child’s attorney knows this only answer what is asked. information, the attorney can try to lessen its negative effect. ◊ Again, try to gather a “support team” for your child, such as church leaders, teachers, community members and employers. Ask them to attend the transfer hearing, or at least write letters of support.

27. 28. Notes Notes

For questions, please call JustChildren at 1-800-578-8111 (toll free).

29. 30. Notes Notes

31. 32. The final The Criminal Trial stages: Once transferred to adult criminal court, your child will go through a trial, where the Commonwealth’s attorney will try to prove the charges against the child. The Com- monwealth’s attorney must prove each of the elements of each charge against your Criminal Trial child by a standard of proof known as beyond a reasonable doubt. This means that if in Circuit Court a judge or jury has even a reasonable doubt that your child committed the charges, the judge or jury must acquit, or reach a verdict of not guilty.

The trial itself can be confusing and intimidating. Here are a few things to keep in mind. During the trial: Verdict Juvenile ◊ Depending on where your child is being held, you may not be able to speak with Sentence or have any physical contact with him or her.

◊ The Commonwealth’s attorney will put on witnesses that your child’s attorney Not Guilty Guilty will be able to cross-examine. Your child’s attorney may choose not to ask any questions during some cross-examinations, as it may not fit into the defense strategy, or the witness may not be able to provide information that will help your child’s case. Adult or Blended Sentence ◊ Your child is not required to testify, and it is often a good defense strategy to keep Appeal the child off of the witness stand. Your child’s attorney understands your desire to want your child to tell his or her “side of the story.” The attorney may not call your child as a witness in order to keep the prosecutor from being able to cross-examine the child. The judge and/or jury cannot use the fact that your child did not testify as a sign of guilt.

Affirmed as Guilty Verdict ◊ Some rules of courtroom procedure and evidence may seem to be contrary to Guilty Overturned common sense. Write down your questions for your child’s attorney and ask him or her during your next meeting.

* A trial may last a few hours or a few days. Try to attend as often and as long as Dispositional you are able, given your other work and home obligations. Phase 33. 34. What you can do What you can do for your child: for your child’s lawyer:

◊ If your child has been detained prior to the trial, your child may be led into the ◊ Prepare again to hear testimony from government witnesses that you believe to courtroom in a prison jumpsuit and shackles. Although this can be upsetting, always be untrue or that may upset you. Try not to react, either verbally or visibly, when hear- try to show you are positive and supportive of your child. Once again, try to put to- ing this information, no matter how emotional it may be. If the testimony is untrue, gether a court-appropriate outfit (as described in the “Transfer Hearing” section). You use the “Notes” section of this handbook to write down your thoughts, and then share will likely have to deliver it to the detention facility if your child is being held pending them with your child’s attorney at an appropriate time. trial. ◊ Write down any questions you have about the trial, and share your questions or ◊ Because your child is now in adult court, the trial may be before a jury. Juries can concerns with your child’s attorney during an appropriate meeting time. Try to wait be hard to predict, so it’s very important that both you and your child stay reserved and until you can meet in private, as there are often police officers, prosecutors, witnesses, respectful while in front of both the judge and the jury. A jury should only consider the and jurors present in the open areas of the courthouse. facts and the law as presented during the trial, but what they see and how they react to your child will play a part in their consideration of your child. ◊ If your child’s attorney will be calling witnesses on behalf of your child, try to help make sure they are present in court when they are supposed to be. Provide your ◊ Once again, it’s a good idea to gather a support network of family, friends, and child’s attorney with any contact information for witnesses, if possible. community members to attend the trial in support of your child. Be sure to remind them ahead of time of the strict rules in the courtroom, and prepare them for what ◊ Try to listen carefully to everything that is happening in the courtroom, and be they might see and hear, as we’ve mentioned above. sure to stay positive for your child.

◊ If you have a chance to speak with your child at any point before or during the trial, remind him or her to mind manners, sit up straight, and act interested in what is happening in the courtroom.

35. 36. The Sentence: The Sentence: A Judge’s Options

Juvenile Detention vs. Adult Prison You will want to talk to your child’s attorney about the different sentencing options for your child. Also, talk with the Court Services Unit connected with the juvenile court. The judge’s options depend heavily on the crimes for which your child was convicted. If your child receives a sentence that includes serving time, there are important For less severe crimes, a juvenile convicted as an adult may be given any of the sentences reasons why juvenile facilities are better than adult prisons. available to the juvenile court if he or she were convicted in juvenile court. This includes community-based services and other alternatives to incarceration. Ask about treatment In a juvenile correctional center: or rehabilitation in the community, especially if your child was only convicted of misde- meanors. Virginia has seven correctional centers located in small towns or rural areas. Most have tall fences topped with razor wire. In many ways, the juvenile correc- ◊ Adult Sentence – A juvenile convicted of a felony may receive the same sentence as tional centers are juvenile prisons. The good points, though, are that: an adult convicted of the same crime. This means that a juvenile could be sent straight to a Department of Corrections prison to serve a full sentence with adult inmates. ◊ Your child will be held with other juveniles and supervised by officers with experience in dealing with youth. ◊ Blended Sentence – A convicted juvenile may be sentenced to treatment or rehabili- ◊ Your child will receive regular educational services appropriate for his or her tation in the community under certain circumstances. The court may also sentence the level. child to a juvenile correctional center for part of the sentence, with the remainder of the ◊ Your child may be able to take advantage of a variety of services, such as men- sentence to be served in a Department of Corrections prison with adult inmates. Typical- tal health care, job skills training, and recreational activities. ly, a juvenile will be sentenced to a juvenile facility until reaching 21 years of age, then to ◊ You will be able to spend quality time with your child during visitation—to an adult prison for the rest of the sentence, but the judge can send the child to the adult interact with your child and give him or her the affection and attention that prison at an earlier age. will motivate your child to stay on track. ◊ Juvenile Commitment with Suspended Adult Sentence – A juvenile may be committed In an adult prison or jail: to a juvenile correctional center for one sentence, with an additional sentence to an adult facility suspended. This means that if your child behaves well and successfully completes ◊ Your child will be supervised by officers with little or no experience working his or her juvenile sentence and other conditions, he or she will not have to serve the adult with children. portion of the sentence. If your child re-offends or does not meet the conditions of the ◊ Your child may be placed in the same cell as an adult offender. juvenile sentence, however, he or she may have to serve the adult portion of the sentence. ◊ Your child may not receive the same amount or quality of educational services available in a juvenile facility. ◊ Juvenile Commitment – Even after conviction as an adult, depending on the severity of the crime, a juvenile can be committed to a juvenile correctional center for his or her ◊ The adult facility may not employ mental health care workers or other thera- entire sentence. Depending on the crime, the child may be able to serve the sentence in pists who are trained to work with children. treatment in the community. ◊ During visitation, you may be physically separated from your child by a bar- rier. ◊ Mandatory Services – Judges often order mandatory services at sentencing, such as 37. anger management, substance abuse treatment, or sex offender treatment. 38. The Sentencing Hearing Sentencing: What the law means If your child is convicted, the court will have a hearing to decide your child’s punishment. It’s important to remember that even after being convicted as If convicted of a violent juvenile felony offense (one of the offenses listed in an adult, in most cases your child can be given a juvenile sentence. (This may Prosecutorial Waiver—What it means, p. 22), for that offense and all ancillary depend on the sentencing guidelines for the charge.) The sentencing hearing crimes, the court may order any of the following: should provide the judge with all the information needed to give an appropriate sentence that advances the interests of both the community and the juve- ◊ The juvenile is to serve a portion of the sentence in a juvenile correctional nile. The probation office will prepare a pre-sentence report on your child. Your center and the remainder of the sentence in the Department of Corrections. child’s attorney and you can see this report. The judge will also hear from witnesses, possibly the victim(s) of the crime, and maybe even your child. ◊ The juvenile is to serve the entire sentence in the same manner as adults.

You will want to talk with your child’s attorney early and often in preparing for ◊ The juvenile is to serve a juvenile sentence, which could include commitment the sentencing hearing. Find out from the attorney the sentencing options for to a juvenile correctional center, with an additional adult sentence suspended, your child’s case. If your child was not convicted of a felony, the court can sen- conditioned on the successful completion of juvenile sentence. tence your child to treatment or rehabilitation in the community. Ask the attorney the most helpful things you can do to prepare for the hearing. This may If a juvenile is convicted of any other felony the court may sentence the juve- include some of the following (much like in the case of a transfer hearing): nile as an adult, may order a juvenile sentence (including commitment) with adult time suspended, or may order any sentence available under the juvenile ◊ Continue to maintain regular contact with your child, and remind him or her code. to behave and take advantage of any services the detention facility might provide. Encourage your child to be a model citizen in detention, so that the judge If a juvenile is convicted of a misdemeanor, the court will sentence the juvenile and the prosecutor believe your child does not belong in an adult facility. as permitted in a delinquency case in juvenile court.

◊ Share with the attorney any papers or other materials that reflect well on your Note on Mandatory Minimum Sentences: child and his or her potential to be a responsible, productive member of society. A juvenile convicted of a felony that, according to law, includes a mandatory This might include copies of school grades, progress reports, school work, cer- minimum sentence must serve at least that minimum time in an adult prison. tificates, diplomas, etc. The juvenile can still receive a blended sentence, spending the first part in a juvenile facility to receive treatment and services, prior to transfer to an adult ◊ Enlist the support of family, friends, church groups, and other community facility. But the time spent in the juvenile facility generally does not count to- members. If your child has a strong support network ready after release, a judge ward satisfying the mandatory minimum. may be more likely to give the child a favorable sentence, allowing him or her to return to the community more quickly. *Please see the Appendix of this guide for the full text of this law.

39. 40. Incarceration in Incarceration in a Juvenile Facility a Juvenile Facility

Review Hearings If your child is sentenced to a juvenile correctional center, there are several things you can do to help him or her. If your child was convicted as an adult and given a blended sentence—a sentence requiring the child to serve some time in a juvenile facility, followed by addi- ◊ Stay in regular contact with your child so you can encourage him or her, and tional time in an adult facility—the court will hold a review hearing approxi- so you can help address any concerns that may arise about the services or con- mately two years after the initial sentencing date. After the first hearing, the ditions of your child’s detention. court will hold review hearings every year until your child turns twenty-one. The purpose of these hearings is to review your child’s progress and the appro- ◊ Get to know the staff at the correctional facility and the parole officer, so they priateness of the original sentence. At each of these hearings, the judge can do have a more complete picture of your child and his or her potential. any of the following:

◊ Encourage your child to use the educational, mental health services, job train- ◊ Order your child to begin serving the adult portion of his or her sentence in ing, and other available services. an adult prison.

◊ If your child was receiving special education services before being detained, ◊ Suspend part or all of the unserved adult sentence if your child successfully he or she is entitled to receive special education services in the correctional cen- completed the juvenile sentence requirements. ter. Make sure your child receives these services. ◊ Order the continued commitment of your child in the juvenile facility for the ◊ Find out if there are services you child would like but isn’t receiving, and talk length of the original sentence or for a shorter amount of time. to the facility to ask for them. ◊ Release your child from the juvenile facility, under certain conditions. ◊ If your child’s sentence requires the completion of mandatory programs—anger management, substance abuse counseling, sex offender treatment, etc.— The review hearings are opportunities to persuade the court that your child has make sure the Department of Juvenile Justice makes these programs available been rehabilitated while in the juvenile correctional center and should not have to your child. Encourage your child to participate and complete them on time. to serve additional time in the adult system. Before each hearing, you should Make sure the programs are available immediately so that they can be complet- speak with your child’s attorney. ed during the length of your child’s sentence. Many of the sways you can help your child’s attorney for the original sentencing hearing will also be helpful in preparing for a review hearing. (Review the section on The Sentencing Hearing.)

41. 42. Reception and Incarceration in Diagnostic Center an Adult Prison

If your child’s sentence is commitment to the Department of Juvenile Justice, If your child is sentenced to an adult jail or prison, the kinds of services avail- he or she will first go to the Reception and Diagnostic Center (RDC) at Bon able in juvenile facilities may be harder for your child to access. The adult pris- Air, Virginia, near Richmond. For one to two months, staff will interview the on staff are likely not trained to deal specifically with juveniles. child and test the child to determine the best placement. Evaluations will include psychological, education, social and medical. You may be able to help your child gain access to appropriate services and conditions in the adult facility by asking the right questions and following up with Department of Corrections staff. Some questions you should ask are: Length of Stay: ◊ What services are available to my child? (Mental health, substance abuse If the sentence is indeterminate, the staff will determine how long the child treatment, etc.) How often are they available to my child? Are any of these de- must stay in a juvenile facility. This is theLength of Stay. The nature of the signed specifically to serve juveniles? crime and prior criminal history are the major factors in length of stay. ◊ What should my child be doing while in detention?

Mandatory Services: ◊ What can I do to help my child?

The staff at RDC will also decide whether your child must complete certain ser- ◊ Who is my child’s roommate? Is it another juvenile? If it is an adult, does that vices before release. If a court has ordered specific services, they will be on the person’s background raise concerns about incarceration with a youth room- list, but RDC can also mandate services not ordered by the court. mate?

◊ How often and how regularly is my child in school? Is my child progressing Your Involvement: toward graduation?

You have a right to participate in a conference at RDC with your child to learn ◊ If my child has a disability and/or special education needs, is that being ac- about the length of stay and mandatory services. If you cannot travel to Bon commodated? Air, ask to participate by telephone.

43. 44. The Correctional Facility: Protecting Your Child’s Rights Coming Home

In a juvenile correctional center, your child has the legal right to: Children convicted as adults are often sentenced to serve time in a juvenile correctional center, sometimes followed by additional time in an adult prison. ◊ Safety Fewer children are sentenced directly to adult prisons. Returning home after ◊ Freedom from gangs serving a sentence is a difficult transition for both children and adults. ◊ Respect from the staff ◊ Education (even if held in isolation) Critical Transitions ◊ Adequate medical and mental health care ◊ Healthy food Here are some issues you should think about as your get ready for your child’s ◊ Daily exercise (even if held in isolation) release. ◊ Phone calls to family ◊ Visits with family ◊ Education and/or Employment: Will my child be able to return to school immediately, including any special education services? Will my child be able to If these rights are violated, your child can file a formal grievance with the correc- continue with vocational training he or she started while in prison? Is there a tional center’s Ward Grievance Coordinator. Grievance forms are available in the GED program my child can complete? Are there continuing educational op- facility. There are other things you can do to voice concerns and advocate for your portunities available and appropriate for my child? child’s rights in the juvenile correctional center. If you believe that any of your child’s rights are being violated, write in a diary to keep track of the dates and in- ◊ Finances and Documentation: What documents will my child need to be cidents as your child tells you about them. This documentation can be important when trying to resolve disputes. able to get state identification upon release? What documents will my child need in order to sign up for any appropriate public benefits, to open a bank ac- Parents can do several things to address their child’s problems at the correctional count, to apply for jobs, or to get housing? Is my child required to register with center. You should start with the first step and move down the list to more serious local authorities (as a sex offender, etc.)? steps as needed. ◊ Health and Well-Being: Are there prescription medications my child will 1. Talk to your child’s counselor. Your child will be assigned a counselor at need after release? Is my child receiving mental health services that should con- the juvenile correctional center. tinue? Does my child have substance-abuse issues that require treatment? Who 2. If educational rights are involved, talk to the school principal. will pay for my child’s health care and treatment? Will my child be eligible for 3. Have your child file a formal grievance, if he or she hasn’t already. public healthcare benefits? What will my child do to relieve stress? 4. Send a letter or e-mail to the superintendent of the correctional center. 5. Meet with your child’s treatment team. 6. Talk with your child’s probation or parole officer. 7. Write a letter to the director of the Department of Juvenile Justice. 45. 46. Coming Home Coming Home

A few more questions you and your child will want to ask and explore as you Your child may have the right to transitional services from the Department of prepare for the transition home: Juvenile Justice or the Department of Corrections.

◊ Family and Social Relationships: How will my child deal with especially Coming from Department of Juvenile Justice Custody bad or good relationships? What positive activities and social groups will be available to my child? Who should my child avoid? Children in DJJ custody have protections and rights that those in adult prisons don’t have. DJJ is required to start planning for a child’s re-enrollment in the ◊ Housing and Transportation: Where will my child live after release? Is that public schools at least 30 days before release. The Department of Correctional a positive environment? If it’s in a public housing unit, will my child’s criminal Education should give students in juvenile correctional facilities transition plans record be a problem? What chores or expenses will my child be expected to take for career development and for finding a job. care of? How will my child get around? What is the backup transportation? DJJ regulations* for mental health services transition planning will help your ◊ Court Responsibilities: What are my child’s responsibilities to his or her child in transitioning back into the community in a positive way. If your child probation officer? How many times a week must he or she check in? How will has been on mental health drugs or received other mental health services, the my child communicate with the probation officer (with phone calls, face-to- staff at the juvenile correctional center must determine if the child is eligible to face visits)? Is my child required to continue drug testing or any other condi- receive enhanced mental health transition planning at least 90 days before the tions of release? Will my child have a curfew or electronic monitor? child’s release. You have a right to be involved in the planning for these services.

* Check with your child’s counselor or therapist to determine your child’s Many of these things will take a lot of time to arrange, so it’s important to start rights. planning early for your child’s return—at least 90 days before release. Start by talking about these issues with your child’s parole officer, correctional center Coming from an Adult Prison counselor, other people involved with your child, friends and family members, and other resources in your community. If your child is coming home from an adult prison, he or she may not get the same planning help from the Department of Corrections. Talk to your child’s You will want to make sure people are workingn together and preparing for parole officer to see what planning help is available. your child’s release, including people in DJJ, the school, and other agencies.

47. 48. Notes Notes

For questions, please call JustChildren at 1-800-578-8111 (toll free).

49. 50. Notes Notes

51. 52. Resources Resources

The following is a list of organizations that specialize in different aspects of the juvenile justice system, ranging from direct legal services to research and advocacy. The informa- ◊ National Juvenile Defender Center (NJDC) http://www.njdc.info/index.php tion available on the websites listed below will help you navigate the juvenile justice sys- NJDC provides support to public defenders, appointed counsel, law school clinical tem for both informational and advocacy purposes. programs and non-profit law centers to ensure quality representation in urban, subur- ban, rural and tribal areas. NJDC offers a wide range of integrated services to juvenile For more information and assistance in Virginia, please contact: defenders, including training, technical assistance, advocacy, networking, collaboration, capacity building and coordination. ◊ JustChildren, Legal Aid Justice Center www.justice4all.org JustChildren’s lawyers provide legal representation to numerous young people from birth to age 18. The organization helps children with disabilities access appropriate education services and children with mental health problems access necessary treatment services. ◊ Youth Law Center www.ylc.org JustChildren also helps children involved in the juvenile court and children whose cases have been transferred to adult court to receive the support and services necessary to re- The Youth Law Center is a non-profit, public interest law office that has worked to- pro main in their communities. It also represents children suspended or expelled from school. tect abused and at-risk children since 1978. With offices in San Francisco, the Center works nationally to serve children, focusing particularly upon the problems of children Call Toll-free: (800) 578-8111 (clients only), or (434) 977-0553 living apart from their families in child welfare and juvenile justice systems.

For information on Law and Policy: ◊ Southern Poverty Law Center (SPLC) www.splcenter.org ◊ Center for Children’s Law and Policy (CCLP) www.cclp.org The Center for Children’s Law and Policy (CCLP) is a public interest law and policy The Southern Poverty Law Center was founded in 1971 as a small civil rights law organization focused on reform of juvenile justice and other systems that affect troubled firm. Today, SPLC is internationally known for its tolerance education programs, and at-risk children, and protection of the rights of children in those systems. The Cen- its legal victories against white supremacists and its tracking of hate groups. SPLC ter’s work covers a range of activities including research, writing, public education, media also does select juvenile justice cases. advocacy, training, technical assistance, administrative and legislative advocacy, and litigation. ◊ American Civil Liberties Union (ACLU) National Prison Project www. ◊ Juvenile Law Center (JLC) http://www.jlc.org/ aclu.org/prison Founded in 1975 as a non-profit legal service, JLC is one of the oldest public interest law firms for children in the United States. Through legal advocacy, research, publications, The ACLU’s National Prison Project is the only national litigation program on public education and training, JLC works to ensure that the child welfare, juvenile justice behalf of prisoners. Since 1972, the NPP has represented more than 100,000 men, and other public systems provide vulnerable children with the protection and services women and children. The NPP continues to fight unconstitutional conditions and they need to become happy, healthy and productive adults. JLC primarily serves youth in Pennsylvania, but lends its expertise to national advocacy efforts as well. the “lock ‘em up” mentality that prevails in the legislatures. 53. 54. Resources Resources

For information on Research and Publications: ◊ National Council on Crime & Delinquency www.nccd-crc.org

◊ Justice Policy Institute www.justicepolicy.org The National Council on Crime and Delinquency, founded in 1907, is a non- profit organization that promotes effective, humane, fair, and economically JPI is a national non profit and research and public policy organization dedi- sound solutions to family, community, and justice problems. NCCD conducts cated to ending society’s reliance on incarceration and promoting effective and research, promotes reform initiatives, and seeks to work with individuals, pub- just solutions to social problems. lic and private organizations, and the media to prevent and reduce crime and delinquency. ◊ MacArthur Foundation Research Network on Adolescent Development and Juvenile Justice www.mac-adolev-juvjustice.org ◊ The Sentencing Project www.sentencingproject.org

The MacArthur Foundation Research Network on Adolescent Development The Sentencing Project is a national organization working for a fair and effec- and Juvenile Justice is a group of experts in the field that seek to expand the tive criminal justice system by promoting reforms in sentencing law and prac- base of knowledge about the origins, development, prevention, and treatment tice, and alternatives to incarceration through groundbreaking research, aggres- of juvenile crime and delinquency; to disseminate that knowledge to profes- sive media campaigns and strategic advocacy. sionals and the public; to improve decision-making in the current system; and to prepare the way for the next generation of reform in juvenile justice policy ◊ Vera Institute of Justice www.vera.org and practice. The Vera Institute of Justice works closely with leaders in government and ◊ National Center for Juvenile Justice (NCJJ) www.ncjj.org civil society to improve the services people rely on for safety and justice. Vera develops innovative, affordable programs that often grow into self-sustaining Established in 1973, NCJJ been a resource for independent and original re- organizations, studies social problems and current responses, and provides prac- search on topics relating to uvenile justice. Although the Center is the research tical advice and assistance to government officials in New York and around the division of the National Council of Juvenile and Family Court Judges, it has its world. own budget and is responsible for generating its own operating funds.

55. 56. Resources Resources

◊ National Center for Juvenile Justice www.ncjj.org To find information on specific states: Established in 1973, NCJJ been a resource for independent and original research on topics relating to juvenile justice. Although the Center is the research ◊ Coalition for Juvenile Justice (CJJ) www.juvjustice.org division of the National Council of Juvenile and Family Court Judges, it has its own budget and is responsible for generating its own operating funds. CJJ is a national nonprofit association representing governor-appointed advi- sory groups on juvenile justice from the U.S. states, territories and the District ◊ Office of Juvenile Justice & Delinquency Prevention (OJJDP) http://ojj- of Columbia. CJJ promotes best practices and policies, educates the public and dp.ncjrs.org policy makers, oversees states’ compliance with federal juvenile justice legislation and links national, state and local advocates together. OJJDP is the federal office responsible for the juvenile justice system. “OJJDP collaborates with professionals from diverse disciplines to improve juvenile ◊ Community Justice Network for Youth (CJNY) http://www.cjny.org/loca- justice policies and practices. As a part of the Department of Justice, OJJDP tor.html accomplishes its mission by supporting states, local communities, and tribal jurisdictions in their efforts to develop and implement effective programs for CJNY is a program of the W. Haywood Burns Institute. This program is com- juveniles. The Office strives to strengthen the juvenile justice system’s efforts to prised of community based programs, grassroots organizations, service provid- protect public safety, hold offenders accountable, and provide services that ad- ing agencies, residential facilities and advocacy groups that focus their work on dress the needs of youth and their families.” youth of color. The CJNY’s primary function is to be a support network for organizers and practitioners who are on the ground working with youth who ◊ Center for Policy Alternatives www.cfpa.org are at risk or already involved in the juvenile or criminal justice systems. The Center for Policy Alternatives (CPA) empowers state legislators by simulta- ◊ National Juvenile Justice Network (NJJN) http://www.njjn.org/ neously working at three levels: providing values-based leadership development programs to make legislators into more effective advocates for progressive pol- Currently comprising 27 states, NJJN helps its members advance juvenile jus- icy; developing user-friendly policy tools on a wide variety of issues, making it tice reform by establishing a vibrant learning community by convening annual easy for legislators to introduce and argue for progressive legislation; and build- summits and regional meetings. JJN brings in national experts in media, orga- ing a strong, coordinated network of legislators across the states, enabling them nizing and advocacy to help states improve their legislative, programmatic, and to support one another as they take on the often-scary and sometimes-lonely administrative reform efforts. job of leading the fight for progressive change.

**CPA has a link in the “Policy Models” section of its website on Juvenile Transfer Reform. 57. 58. Resources Take Action A guide to advocating and campaign organizing for juvenile justice reform To find out about Successful Models & Promising Juvenile Justice Approaches: States and policymakers nationwide have implemented reform programs in the Pushing for social change is a multistage process that requires education, collab- juvenile justice system that reduce incarceration rates, connect youth with their oration and organization. Laws and bureaucracies are often difficult to navigate communities and protect public safety. The publications and initiatives listed be- or confront by yourself – while you can easily call your legislator or local public low are excellent examples of the kind of change that is necessary and possible in official as a concerned individual, effective campaigns are well coordinated and juvenile justice. rely on the skills and efforts of a wide range of people. ◊ Keystones for Reform: Promising Juvenile Justice Policies and Practices in The steps listed below provide a framework through which you can participate Pennsylvania in or even spearhead organizing efforts in your local area. http://216.158.40.79/mfc/YLC002_Pennsylvania_V21.pdf

◊ Annie E. Casey Foundation’s Juvenile Detention Alternatives Initiative 1. Getting Started… (JDAI) ◊ Become Knowledgeable About the Issues http://www.aecf.org/initiatives/jdai/ If joining an organization or starting a new one will not fit into your schedule, attend as many informational forums on the criminal justice system as you can. ◊ The Haywood Burns Institute Check out local community colleges, universities or other educational centers The Burns Institute researches on how the criminal justice system impacts youth to see what is happening. The Internet is an easy place to start as well! The “Re- of color, specifically looking disproportionate minority confinement or DMC in sources Guide” section of this manual has a list of helpful websites of organiza- prisons and detention centers. tions that specialize anywhere from research to direct legal services. www.burnsinstitute.org ◊ Find Out How Others Have Done It ◊ Less Cost, More Safety: Guiding Lights for Reform in Juvenile Justice Talk to other groups who have put together a youth justice campaign. Look at http://www.aypf.org/lesscost/index.html their websites or visit their campaigns. Visit the Campaign for Youth Justice website to get information on current youth justice campaigns at: www.cam- ◊ Less Hype, More Help: Reducing Juvenile Crime, What Works -- and What paignforyouthjustice.org Becoming part of a larger network of organizers and Doesn’t youth advocates who are fighting for similar causes will allow you to share suc- http://www.aypf.org/mendel/index.html cessful campaign strategies and lessons learned.

◊ The Missouri Model ◊ Contact or Join a Local Organization http://www.aecf.org/publications/advocasey/spring2003/small/small.htm Contact or join a local organization in your community that is currently working on or has the potential to work on the issue of trying, sentencing, and in- ◊ Blueprints for Violence Prevention carcerating youth in the adult criminal justice system. For contacts in Virginia, http://www.colorado.edu/cspv/blueprints/index.html check out the Just Children website at www.justice4all.org 59. 60. Take Action Take Action

2. Raise Awareness 3. Direct Action At times, campaign efforts may seem far removed from the reality of the issue at Public education is an important aspect of any issue based campaign. Many peo- hand. While sitting in meetings with public officials is necessary and important, the ple are not familiar with an issue if it does not affect them or someone they know best way to take direct action is to join with others and utilize the collective power of directly. It is important to make the issue accessible to those who may not be the people. Direct action events are meant to “make noise,” literally and figuratively. directly involved in your campaign efforts by showing them how justice for youth Direct action raises the visibility of an issue and brings it to the forefront of people’s is relevant to the entire community. Often times, we gain allies by making these minds. small but meaningful efforts – you may not convert the minds of entire groups of people but you can still expand your network of supporters: Postcard Campaign: At http://www.campaignforyouthjustice.org/parent_tools.html you can download postcard templates or create one to fit your message. Using post- ◊ Start an informational email list to facilitate communication and spread word cards to spread a message can produce good results in a small amount of time. Unlike on the issue. letters, which are often thrown away without even being opened, post cards can be easily read and passed on to others. Postcard campaigns are inexpensive, effective, and ◊ Organize an “interest” meeting to gauge what the level of engagement is like in easy. The following are some basic guidelines to conducting an effective postcard cam- your community. Pass around a sign up list at the meeting and add them to the paign: email list. Play a relevant video (such as “Juvies”) or invite a guest speaker who will speak to the human impact of transfer laws. Step 1: Consider your target audience. Will this postcard be sent to legislators or the general public? What kind of informa- ◊ Organize forums, workshops or panel discussions on the juvenile justice system tion will be best suited for informing this audience? featuring experts from the field, local officials and community members. Step 2: Develop a message. ◊ Host a youth led speak-out to provide the necessary opportunity for young Remember that postcards are relatively small, so you will need to make it succinct. people to speak about their personal experiences in the justice system. Nobody will bother to read an entire novel squeezed onto a single card. A few large words of text will suffice. If you have any trouble getting your message onto the card ◊ Host a house party or social gathering to provide an informal, comfortable provide these files to your local Kinkos and they should be able to assist you. space in which people can talk about the issue. Forums or meetings may be too intimidating for some people who could have an open mind but are not intensely Step 3: Send your postcard to a professional printing company (e.g. Kinko’s or an online political. In social settings such as a house party, you are more likely to convince printer). people to join in your efforts, no matter how small the task. It is always important Send them your design and ask them to print it onto high-quality postcards. The to remember that in addition to full time volunteers and committed coalition printer will address the postcards if you provide a mailing list in an excel spreadsheet. members, the efforts of an individual who calls their legislator, sends out an email Otherwise you will need to print labels from your computer and affix them to the to 5 friends or mails out postcards are also valuable. *Check out the tool kit for postcard. hosting a house party that was used in Connecticut’s successful “Raise the Age” campaign at http://www.campaignforyouthjustice.org/parent_tools.html Step 4: Send postcards out to target group, in a timely manner. 61. 62. Take Action Parting Thoughts

Direct Action (cont’d) he justice system is a complicated place that even lawyers and judges do not always understand completely, so you can imagine how difficult it In addition to a postcard campaign, you may want to consider these direct ac- must be for a child—who is under the tremendous stress and emotional tion responses in your efforts to effect change: Tweight of criminal charges—to navigate through this experience. You, as a parent, are in the unique position of serving as an advocate for your child, some- ◊ Youth or family led speak outs times just by being present.

In communicating an issue, especially one as controversial to the average citi- It’s our hope in creating this guide that you’ll discover even more ways to par- zen as prison reform, there are few things more poignant or moving than hear- ticipate in your child’s court experience. Encouraging your child and helping ing someone’s personal experience, listening to their story. You, your family, or him or her to maintain positive behavior is as meaningful and important a task your child are living through this experience, and can help others just by shar- as helping your child’s attorney gather information related to your child’s case. ing your insights, feelings and observations. Pairing these personal stories with important facts and information about the issue of juvenile justice reform can Even the smallest gesture of support will help, at the very least, to reassure have lasting effects on a community, and consequently, on political leaders. your child that he or she is not abandoned during this intimidating and potentially life-changing experience. We hope you will find this guide useful in ◊ Host a Vigil arming both yourself and your child with knowledge of the court processes. Remember to stay positive, stay present and stay involved. With you on your You can download a detailed toolkit at: http://www.campaignforyouthjustice. child’s “defense team,” no matter may happen, he or she will not face the future org/Downloads/ParentTools/VigilGuidewebversion alone.

There are a number of different ways to hold a vigil. Some campaigns have held the same number of minutes of silence as the number of hours youth are in lockdown in the local prison. Vigils are held in a public space visible to the larger community and can feature an eloquent speaker, a poetry reading related to the issue and other creative forms of expression. A strong turnout is key to any vigil, so it is important to actively invite community members. Bring together a large group of people for a demonstration is also an opportunity to hand out fliers and spread information on campaign efforts.

63. 64. Glossary Glossary

A Beyond a Reasonable Doubt: The standard by which a person must be convicted of criminal charges; the highest standard of proof required in court pro- Adjudication: As juvenile matters are not considered criminal, adjudication is ceedings. A judge or jury must find that they, as average citizens, harbor no the process by which the juvenile court hears evidence of a juvenile’s charges reasonable doubts about the defendant’s guilt in order to enter a guilty verdict. and makes a finding that is very similar to “guilty” or “not guilty” in adult criminal court. Blended Sentence: If a juvenile has been transferred to adult criminal court and is found guilty, a judge may choose a variety of sentencing options, includ- Adult: A person who has reached the age of majority: in most states, age 18. If ing blended sentencing, which combines juvenile sanctions with adult criminal a juvenile is certified or transferred to adult court, the child will be considered penalties, e.g., a total of five years of incarceration, four of which may be served an adult in court. In Virginia, a juvenile as young as age 14 may be tried as an in the juvenile facility and the remainder of which to be served in adult prison. adult. A blended sentence may also be given if the child will reach the age of majority before his or her sentence has been served. Ancillary Charges: Additional or supplemental charges, usually relating to the most serious charge, e.g., use of a weapon in the committing of a felony would Burden of Proof: In a criminal or delinquency proceeding, the burden of prov- be an ancillary charge of armed robbery. ing the defendant’s guilt or involvement rests with the Commonwealth’s At- torney (the prosecution). This is commonly phrased as “innocent until proven Appeal: Asking a higher court to consider a decision by a lower court. Some guilty.” procedural decisions may be appealed to a higher court; in some circumstances, the decision to transfer a child can be appealed. Not all decisions present opportunities for appeal; you should discuss any questions about appeals with C your child’s attorney. Certification: The process, under the transfer statute, by which the Common- Arraignment: The first step in a prosecution: the defendant appears before the wealth’s Attorney requests that a juvenile’s case be moved from the juvenile court to hear the charges against him or her and enter an initial plea. court to the adult court, when the juvenile is charged with certain serious felonies and is 14 years of age or older at the time the crime was allegedly committed. B Circuit Court: A state court that has broad jurisdiction. This is the court that Bail: A security—usually cash or a bond—required by the court to release a will hear criminal cases that have been transferred from juvenile court, among defendant who must appear at a future time. others, as well as the court that hears appeals of transfer decisions from the juvenile court system. 65. 66. Glossary Glossary

Code of Virginia: The set of laws (statutes) governing the state of Virginia. Court-appointed attorney: Among your child’s Miranda rights is the right to an attorney, even if he or she (or you as the parent) cannot afford one. If a pub- Commonwealth’s attorney: In Virginia, the prosecuting or government attor- lic defender is not available to take your child’s case, he or she may be given a ney. court-appointed attorney. The court maintains a list of these private attorneys who are able to take such cases without any financial contribution from you or Community-based treatment: Rehabilitative services provided by various ther- your child. apeutic groups in a community. These can range from drug counseling services to residential group homes, to supplemental educational services and more. D Competency: A requirement of a defendant, either in an adult criminal case or juvenile delinquency proceeding. A defendant must demonstrate to the court that he or she has the capacity to understand the court proceedings (including Deferred Sentence: A sentence that will not be carried out if the defendant the charges levied), to consult with and understand counsel, and to assist in his meets certain requirements, such as complying with conditions of probation. A or her own defense. judge may also sentence a defendant to time in a juvenile facility, with extended time in an adult facility after age 21 deferred, contingent upon successful com- Conditions of Release: In either the pre-trial phase or dispositional phase of a pletion of juvenile time. court proceeding, a judge may condition your child’s release on certain terms, including drug-testing, curfew, avoiding the site of the alleged crime, a stay- Department of Corrections: The Virginia agency governing the entire state away order from involved parties, school attendance, and more. The child is re- prison system. leased to a competent supervising adult (often the parent or other family member), but may be detained once again if found in violation of these conditions. Department of Juvenile Justice: The Virginia agency governing juvenile detention facilities and other administrative aspects of juvenile delinquency. Confidentiality: A requirement placed on the court, agencies that work with the court, lawyers, and other people involved in the case that prevents them Detention Assessment Instrument: The method by which a juvenile’s need for from communicating with others about the case. Sometimes it prevents the detention versus release is measured. This tool can be used in the pre-trial de- public from being in the courtroom to observe a trial when a juvenile is in- tention phase of a child’s case, or in disposition to help determine sentencing. volved, and it may prevent the press from releasing certain identifying details about the case. In the context of your child’s relationship with his or her attor- Disposition: In juvenile proceedings, the equivalent of an adult criminal sen- ney, it may prevent your child’s attorney from discussing certain case matters if tencing hearing, or the adult criminal sentence itself. your child does not consent.

67. 68. Glossary Glossary

Diversion: A legal way to keep a case involving a juvenile from being filed in Flight-risk Factor: One consideration a judge may use in determining whether the juvenile court clerk’s office for less serious crimes. Intake Officers are- per or not to detain a juvenile before trial and/or whether to set a bail or bond. The mitted to divert less serious charges and instead provide informal sanctions and judge evaluates the likelihood that the person charged will appear for trial or monitoring on the child. other necessary hearings.

G E Grand Jury: A group of people (the number varying from state to state) tasked Elements (of a charge): The individual portions of a criminal statute which with the duty of inquiring into crimes committed in their community. The must be demonstrated to prove guilt in a criminal case. This can include actions Grand Jury determines whether there is sufficient evidence to determine a (e.g. “did murder”), mental state (e.g. “with the intent to kill”), and qualita- probability of guilt, and returns indictments of specific charges against the de- tive attributes (e.g. “with a dangerous weapon”). If any one of the elements of a fendant. charge is not shown to be true beyond a reasonable doubt, the defendant must be acquitted of the charge. Guardian ad litem: An attorney appointed by the court to represent the best interests of a child in a civil case. Evidence: The information, documents, testimony, and physical implements introduced into the criminal proceeding to show the likelihood that the defen- H dant did or did not commit the alleged offense. Hearsay: The report of another person’s words by a witness. Hearsay is usually Expungment: The removal of a conviction from a criminal record; it is often inadmissible in court, but there are a variety of exceptions that allow such testi- available for juveniles when they reach the age of majority if they have served mony to be admitted the entirety of their sentence. I

F Indictment: The formal, written accusation of a crime, made by a Grand Jury and used in the prosecution of a particular person for a particular crime. Felony: A crime, sometimes involving violence, usually punishable by impris- onment for more than one year. Felonies are considered more serious than Indeterminate: A type of sentence imposed after conviction of a crime that misdemeanor crimes. does not specify a definite period of time that must be served, but instead gives a range of time, such as “five to ten years.”

69. 70. Glossary Glossary

Juvenile Competency Services: A government agency often tasked with determining a juvenile’s competency to stand trial. If JCS officials find that a juvenile Intake: The process by which an Intake Officer makes or declines to make a is not competent, they may order services such as counseling or other therapy finding of probable cause on an allegation against a juvenile. Should a finding to try to restore the child to competency. of probable cause be issued, a petition on the allegations will be filed with the juvenile court clerk’s office. Juvenile Detention Facility: The secure facility created to hold adjudicated juveniles and some juveniles awaiting trial. These facilities should provide educa- Intake officer: The individual who conducts the intake evaluation on a juve- tional services (including special education), and most also offer other services nile. This officer can determine whether to seek a petition against a child, or to such as drug counseling and skills-building courses. divert the charges and mandate informal sanctions (or dismiss). Juvenile transfer: In Virginia, the process by which legal jurisdiction over a juvenile between the ages of 14 and 18 is moved from the juvenile court system J-K to the adult court system. Transfer may only occur in cases involving certain serious felony charges, as defined in the transfer statute, Va. Code §16.1-269.1. J&DR Court: The Juvenile and Domestic Relations Court in Virginia. This is L the court that will hear juvenile delinquency matters, among others, and will hold the transfer hearing, if applicable. Lesser-included offense: A crime for which all the elements necessary to impose liability are also elements found in a more serious crime. A judge may be Jail: A secure detention facility usually used for short-term incarceration, such able to instruct a jury that they may find a defendant guilty of the most serious as pre-trial detention or short dispositional sentences. These facilities are often crime charged, or they may find guilt of a less serious related crime if all the ele- run by the localities in which they sit. ments are present. For example, a judge could instruct a jury that they may find a defendant guilty of aggravated assault, or if the aggravated nature of the crime Jurisdiction: A particular court’s power to hear a case. Once a juvenile’s case is not found, a jury may convict the defendant of a simple assault. has been certified or transferred to adult court, the J&DR court loses jurisdiction over the child, and relinquishes it to the adult Circuit court. If the child is Length of stay: The actual time served in a correctional facility, which may dif- not transferred properly, or if the transfer decision is overturned, the juvenile fer from the amount of time given at sentencing. court will maintain jurisdiction over all subsequent matters unless the juvenile is properly transferred or until he or she reaches the age of majority. M Juvenile: For legal purposes in Virginia, a person under the age of 18 years. Magistrate: A civil officer or lay judge presiding over a court that hears minor Once a child has charges certified or transferred to the adult criminal court, offense and some preliminary matters in more serious cases. A magistrate judge however, he or she is no longer viewed as a juvenile in the eyes of the court. may preside over a juvenile’s preliminary hearing(s). 71. 72. Glossary Glossary

Mandatory Minimum Sentence: Certain serious felonies (such as some fire- arms offenses) carry a requirement that a person serve a minimum amount O-P of time in prison if convicted. If a juvenile is transferred to adult court and is convicted of a charge that carries a mandatory minimum sentence, the juvenile Parole: The release of a prisoner before the expiration of his or her given sen- must serve that minimum time in an adult facility; a judge may not credit time tence, either temporarily or permanently, on the condition of good behavior or spent in a juvenile facility towards the sentence. the completion of other court-ordered conditions.

Miranda rights: Based on the Supreme Court case of Miranda v. Arizona, Petition: A formal written request presented to a court or other official body; which confers certain rights to any person taken into custody, including the an official complaint, often used to represent allegations made against juveniles. right to remain silent and the right to an attorney, even if the individual cannot afford representation. Police officers have a duty to inform individuals taken Preliminary Hearing: Hearings held before trial to determine such matters as into custody of their Miranda rights before any questioning occurs. pre-trial detention, competency, probable cause, and transfer.

Misdemeanor: A non-indictable offense, considered to be less serious than a Prison: Facilities with varying degrees of security where adult offenders are held felony. These charges can be taken into account, however, when a judge is mak- after sentencing. ing decisions about pre-trial release and transfer, and can also add time to criminal sentences. Probable Cause: A finding made by a judge or Grand Jury that there is a reasonable basis to believe that a judge or a jury could find a specific person guilty Motion: A written or oral request to the court to make a specific ruling or of the specific charges against him or her. Police officers must also make a -find order. These can include motions to suppress evidence, motions to dismiss the ing of probable cause before conducting some searches or police stops. charges, or motions to transfer a juvenile from an adult facility to a juvenile detention center, among countless others. Probation: The release of an offender from detention, subject to a period of good behavior under supervision. N Probation Officer: A person appointed to supervise offenders who are on pro- Nolle Prosequi: The legal abandoning of a prosecution. Essentially, the with- bation. The officer may be tasked with monitoring drug testing, job search, drawal of charges by the prosecution, although these charges may be re-filed at educational progress, and/or participation in any court-ordered programs. An a later time in some cases. offender may be required to meet with the probation officer on a regular basis, either in person or by phone. Notice: The formal delivery of information to relevant parties in a court matter. In order to proceed with transferring a juvenile to adult court, the child’s parents or attorney must be given proper notice.

73. 74. Glossary Glossary

Public Defender: A lawyer employed at public expense in a criminal trial to represent a defendant who is unable to afford legal assistance. Social History Report: Information collected for the purpose of aiding a judge in determining whether a juvenile should be released pending trial, transferred to adult court, or sentenced to detention as a disposition. The report can in- R clude psychological, sociological and educational evaluations conducted by court order, as well as family histories and other information deemed pertinent.

Recognizance (also, personal recognizance): usually a bail bond that guaran- Subpoena: A writ ordering a person to appear in court for a specific matter. A tees that a criminal defendant who is not detained will return for a court date. subpoena may also be used to compel a person or agency to produce certain Personal recognizance: when the court accepts the defendant’s word that they documents or other evidence related to a court proceeding. Witnesses in your will return for a court date, without placing any bond or putting up any mon- child’s case may receive subpoenas from either the prosecution or the defense ey. attorney.

Respondent: The person against whom a civil case or petition is filed through the Intake Officer. T-U

Rules of Evidence: A set of rules governing how evidence is admitted and used or excluded in court proceedings. These rules can vary from state to state, but Transfer Hearing: When certain serious felony charges are levied against a are generally quite similar in nature. juvenile, the court may hold a transfer hearing to determine whether the child is a proper fit for the juvenile justice system, or whether jurisdiction should be transferred to the adult criminal court. S True Bill: A Grand Jury’s determination that a criminal charge should go to trial. Sentence: The resulting disposition following a guilty verdict. In a jury trial, the jury makes a finding of guilty or not guilty, and can make sentencing recommendations, although the judge still holds the final say. In rare instances, V-Z a judge may overturn a jury’s verdict if he or she finds it to have been made in (legal) error, and may also choose to stray from the jury’s sentencing recom- mendation. Warrant: An order directing or authorizing someone to do an act, especially one directing a law enforcer to make an arrest.

75. 76. Judicial Discretion: Appendix What the law says

On the pages following, you will find the actual text of the laws discussed in Va. Code §16.1-269.1(a) this guide. If you have any questions about these or other laws, ask your child’s lawyer or contact JustChildren (www.justice4all.org) at 434.977.0553. A. Except as provided in subsections B and C, if a juvenile fourteen years of age or older at the time of an alleged offense is charged with an offense which would be a You can also look up laws included in the Virginia Code and check on other felony if committed by an adult, the court shall, on motion of the attorney for the state legislative matters on the following site: http://leg1.state.va.us/ Commonwealth and prior to a hearing on the merits, hold a transfer hearing and may retain jurisdiction or transfer such juvenile for proper criminal proceedings to the appropriate circuit court having criminal jurisdiction of such offenses if committed by an adult. Any transfer to the appropriate circuit court shall be subject to the following conditions:

1. Notice as prescribed in §§ 16.1-263 and 16.1-264 shall be given to the juvenile and his parent, guardian, legal custodian or other person standing in loco parentis; or attorney;

2. The juvenile court finds that probable cause exists to believe that the juvenile committed the delinquent act as alleged or a lesser included delinquent act which would be a felony if committed by an adult;

3. The juvenile is competent to stand trial. The juvenile is presumed to be competent and the burden is on the party alleging the juvenile is not competent to rebut the pre- sumption by a preponderance of the evidence; and

4. The court finds by a preponderance of the evidence that the juvenile is not a proper person to remain within the jurisdiction of the juvenile court. In determining whether a juvenile is a proper person to remain within the jurisdiction of the juvenile court, the court shall consider, but not be limited to, the following factors:

a. The juvenile’s age;

77. 78. continued b. The seriousness and number of alleged offenses, including (i) whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner; Mandatory Transfer: (ii) whether the alleged offense was against persons or property, with greater weight being given to offenses against persons, especially if death or bodily injury resulted; What the law says (iii) whether the maximum punishment for such an offense is greater than twenty years confinement if committed by an adult; (iv) whether the alleged offense -in volved the use of a firearm or other dangerous weapon by brandishing, threatening, displaying or otherwise employing such weapon; and (v) the nature of the juvenile’s participation in the alleged offense; Va. Code §16.1-269.1(b) c. Whether the juvenile can be retained in the juvenile justice system long enough for effective treatment and rehabilitation; ◊ The juvenile court shall conduct a preliminary hearing whenever a juvenile fourteen years of age or older is charged with murder in violation of §§18.2-31, d. The appropriateness and availability of the services and dispositional alternatives 18.2-32 or 18.2-40, or aggravated malicious wounding in violation of §18.2- in both the criminal justice and juvenile justice systems for dealing with the juve- 51.2. nile’s problems; e. The record and previous history of the juvenile in this or other jurisdictions, including (i) the number and nature of previous contacts with juvenile or circuit courts, (ii) the number and nature of prior periods of probation, (iii) the number and nature of prior commitments to juvenile correctional centers, (iv) the number and nature of previous residential and community-based treatments, (v) whether previous adjudications and commitments were for delinquent acts that involved the infliction of serious bodily injury, and (vi) whether the alleged offense is part of a repetitive pattern of similar adjudicated offenses; f. Whether the juvenile has previously absconded from the legal custody of a juvenile correctional entity in this or any other jurisdiction; g. The extent, if any, of the juvenile’s degree of mental retardation or mental illness; h. The juvenile’s school record and education; i. The juvenile’s mental and emotional maturity; and j. The juvenile’s physical condition and physical maturity. 80. 79. Prosecutorial Waiver: Direct Filing: What the law says

What the law says Va. Code §16.1-269.1(d)

Va. Code §16.1-269.1(c) D. Upon a finding of probable cause pursuant to a preliminary hearing under subsection B or C, the juvenile court shall certify the charge, and all ancillary charges, (c) The juvenile court shall conduct a preliminary hearing whenever a juvenile to the grand jury. Such certification shall divest the juvenile court of jurisdiction as fourteen years of age or older is charged with murder in violation of § 18.2-33, to the charge and any ancillary charges. Nothing in this subsection shall divest the felonious injury by mob in violation of § 18.2-41, abduction in violation of § juvenile court of jurisdiction over any matters unrelated to such charge and ancil- 18.2-48, malicious wounding in violation of § 18.2-51, malicious wounding lary charges which may otherwise be properly within the jurisdiction of the juvenile of a law-enforcement officer in violation of § 18.2-51.1, felonious poisoning in court. violation of § 18.2-54.1, adulteration of products in violation of § 18.2-54.2, robbery in violation of § 18.2-58 or carjacking in violation of § 18.2-58.1, rape If the court does not find probable cause to believe that the juvenile has commit- in violation of § 18.2-61, forcible sodomy in violation of § 18.2-67.1 or object ted the violent juvenile felony as charged in the petition or warrant or if the peti- sexual penetration in violation of § 18.2-67.2, provided the attorney for the tion or warrant is terminated by dismissal in the juvenile court, the attorney for the Commonwealth gives written notice of his intent to proceed pursuant to this Commonwealth may seek a direct indictment in the circuit court. If the petition or subsection. The notice shall be filed with the court and mailed or delivered to warrant is terminated by nolle prosequi in the juvenile court, the attorney for the counsel for the juvenile or, if the juvenile is not then represented by counsel, Commonwealth may seek an indictment only after a preliminary hearing in juve- to the juvenile and a parent, guardian or other person standing in loco parentis nile court. with respect to the juvenile at least seven days prior to the preliminary hearing. If the attorney for the Commonwealth elects not to give such notice, or if he If the court finds that the juvenile was not fourteen years of age or older at the time elects to withdraw the notice prior to certification of the charge to the grand of the alleged commission of the offense or that the conditions specified in subdivi- jury, he may proceed as provided in subsection A. sion 1, 2, or 3 of subsection A have not been met, the case shall proceed as otherwise provided for by law.

81. 82. The “Once an adult, always an Sentencing: What the law says adult” law: What it says Va. Code §16.1-272 (A) - (B) A. In any case in which a juvenile is indicted, the offense for which he is indicted Va. Code §16.1-271 and all ancillary charges shall be tried in the same manner as provided for in the trial of adults, except as otherwise provided with regard to sentencing. Upon a Conviction of a juvenile as an adult pursuant to the provisions of this chapter shall pre- finding of guilty of any charge, the court shall fix the sentence without the inter- clude the juvenile court for taking jurisdiction of such juvenile for subsequent offenses vention of a jury. committed by that juvenile. 1. If a juvenile is convicted of a violent juvenile felony, for that offense and for Any juvenile who is tried and convicted in a circuit court as an adult under the pro- all ancillary crimes the court may order that (i) the juvenile serve a portion of the visions of this article shall be considered and treated as an adult in any criminal pro- sentence as a serious juvenile offender under § 16.1-285.1 and the remainder of ceeding resulting from any alleged future criminal acts and any pending allegations of such sentence in the same manner as provided for adults; (ii) the juvenile serve the delinquency which have not been disposed of by the juvenile court at the time of the entire sentence in the same manner as provided for adults; or (iii) the portion of criminal conviction. the sentence to be served in the same manner as provided for adults be suspended conditioned upon successful completion of such terms and conditions as may be imposed in a juvenile court upon disposition of a delinquency case including, All procedures and dispositions applicable to adults charged with such a criminal of- but not limited to, commitment under subdivision 14 of § 16.1-278.8 or § 16.1- fense shall apply in such cases, including, but not limited to, arrest; probable cause 285.1. determination by a magistrate or grand jury; the use of a warrant, summons, or capias instead of a petition to initiate the case; adult bail; preliminary hearing and right to 2. If the juvenile is convicted of any other felony, the court may sentence or com- counsel provisions; trial in a court having jurisdiction over adults; and trial and sen- mit the juvenile offender in accordance with the criminal laws of this Common- tencing as an adult. The provisions of this article regarding a transfer hearing shall not wealth or may in its discretion deal with the juvenile in the manner prescribed in be applicable to such juveniles. this chapter for the hearing and disposition of cases in the juvenile court, including, but not limited to, commitment under § 16.1-285.1 or may in its discretion impose an adult sentence and suspend the sentence conditioned upon successful completion of such terms and conditions as may be imposed in a juvenile court upon disposition of a delinquency case.

3. If the juvenile is not convicted of a felony but is convicted of a misdemeanor, the court shall deal with the juvenile in the manner prescribed by law for the disposition of a delinquency case in the juvenile court.

B. If the circuit court decides to deal with the juvenile in the same manner as a case in the juvenile court and places the juvenile on probation, the juvenile may 83. be supervised by a juvenile probation officer. 84. Notes Notes

For questions, please call JustChildren at 1-800-578-8111 (toll free).

85. 86. Notes Notes

87. 88. Notes Notes

89. 90. Notes Notes

91. 92.